MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:         

	BOARD DATE:           7 November 2000                   
	DOCKET NUMBER:   AR2000040118

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Carl W. S. Chun		Director	
	Mr. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn 		Chairperson	
	Mr. Ted S. Kanamine 		Member	
	Mr. William D. Barr 		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  In effect, the applicant requests that she be reinstated in the Army with the restoration of all rights, privileges, and property.  In actuality, she requested that her bar to reenlistment be voided in order for her to reenlist so that she could retire with 20 years of active service.  She also requested that she be restored to the rank of Staff Sergeant E-6.  However, subsequent to her application, the applicant has been discharged from the Army.  

APPLICANT STATES:  She served her country proudly for nearly half of her adult life, and defended herself during court-martial proceedings in order to protect her reputation and honor.  She was promoted to Staff Sergeant on           1 January 1993, proudly performing her duties as a NCO.  Her love of the Army was the major reason she remained in the Army, to serve her country.  The only reason that she opted for a court-martial was to prove her innocence.

She was found guilty of one charge and reduced to Sergeant, causing her to be past her Retention Control Point (RCP), and being forced out of the Army.  The conviction has ruined her life, career, and retirement hopes.  She can’t reenlist.  She requests that her bar to reenlistment be reviewed so that she can finish her career in the Army.  She is a single parent and is the sole provider of three children.  She wants her life back, her rank restored, and the charge dropped.  

She states that the CID agents used their own words when preparing her statement, which was brought out in the testimony.  She was still found guilty of false swearing, which is not true, according to the testimony of one of the CID agents.  She inadvertently overlooked the way her statement was phrased.

EVIDENCE OF RECORD:  The applicant's military records show:

The applicant entered the Army in November 1983 and has had continuous active service until her discharge this year.  Her last enlistment was for six years on 13 April 1994.  She attained the rank of Staff Sergeant, and at the time of her court-martial she was assigned to a forward support battalion in Germany.

The applicant’s evaluation reports throughout her military career are generally excellent, with her raters stating that she was fully capable for promotion and service in positions of greater responsibility.  Her decorations include two awards of the Army Commendation Medal, three awards of the Army Achievement Medal, four awards of the Army Good Conduct Medal, the Southwest Asia Service Medal with three bronze service stars, and the Kuwait Liberation Medal, among others.  The applicant completed a wheel vehicle repair course, and has completed the basic NCO course (BNCOC).

On 29 October 1996 the applicant received nonjudicial punishment under      Article 15, UCMJ, for willfully destroying military property, and for wrongfully soliciting another soldier to break tools to account for what was missing, by breaking tools that were operational.  

On 1 November 1996 the applicant received a memorandum of reprimand for committing the above offenses.    

On 13 February 1999 the applicant’s former commanding officer, a Captain S, signed a statement in which he said that he had recommended an AER (Army Emergency Relief) grant or loan for the applicant sometime in August 1998, that the amount was somewhere between $1000.00 and $2000.00, and that the applicant had some problems with car repair bills, among other things.  He stated that at a later date, in October 1998 he received a phone call from an investigator who suspected the applicant of complicity in some scheme to defraud AER of money.

On 17 June 1999 the applicant was arraigned and tried at a special court-martial which convened in Wurzburg, Germany.  She was found not guilty of conspiring with a civilian to commit larceny in the amount of $1,865.70 from the AER, by having the signature of her commanding officer, a Captain C, fabricated and forged on an AER grant.  She was found not guilty of stealing that money from the AER.  She was found guilty of making a false statement under a lawful oath.  The applicant was sentenced to be reduced to the grade of E-5.

Testimony from the record of trial shows that the applicant was interviewed by two CID agents, and completed a sworn statement.  One of the CID agents stated that he took the statement from the applicant on 8 October 1998, and typed the statement, choosing the language to be used in the sworn statement.  A second statement was taken by a senior CID agent on 2 November 1998.  The testimony by the first CID agent indicates that the senior agent continually questioned the applicant concerning the signature on the 1103 (request for loan or grant), stating that he did not believe her when she said that she did not know who signed the commanding officer’s name to the form, that it had to be either the applicant or the civilian AER employee that forged the signature.  The record of trial, however, is not complete and drifts off with a partial testimony from a garage employee.

In a 12 November 1999 memorandum to the Staff Judge Advocate of the          1st Infantry Division, the applicant’s senior defense counsel requested that the convening authority reconsider the applicant’s situation and exercise clemency, either by disapproving the findings and sentence and imposing instead nonjudicial punishment for the offense of false swearing, or by disapproving her sentence and permitting her to remain in the grade of E-6.  

He stated that the record of trial shows that a CID agent took a statement from the applicant on 8 October 1998, in which she stated that she did not know who had forged her commander’s signature on a form 1103 (in which the commander had recommended approval for the applicant’s receipt of AER money).  That same CID agent witnessed a second interview conducted by an experienced  CID agent, and during that lengthy interrogation, the senior agent indicated to the applicant that either the applicant or the AER civilian employee had forged the signature.  The senior agent was adamant that it had to be one or the other.  The CID agent acknowledged in the record of trial that the senior CID agent insisted that it was either the applicant or the AER civilian employee.  The defense counsel stated that given only that choice, the applicant stated that it could have been the AER civilian employee.  When preparing the ensuing statement, the senior agent adjusted the applicant’s response to say that she knew the AER employee had forged the signature.  The defense counsel continued by saying that the applicant had almost 17 years of service, was on orders to Fort Stewart and would like to complete her military career.  He stated that her career should not be over because she spoke the truth, in that if the senior agent felt that the AER civilian employee had signed the form, then it must have been her, and not the applicant.  He stated that it seemed disproportionate that she could have been found not guilty of substantive charges, but guilty of making a false official statement. 

Enclosed with her application are a number of letters from officers, NCOs, and civilians attesting to the applicant’s good character, performance of duty, professionalism, efficiency, and abilities.  She encloses copies of four NCO evaluation reports with her application.

The applicant was discharged on 12 May 2000 in the rank of Sergeant E-5.  She had 16 years, 6 months, and 3 days of service and was authorized full separation pay.  The reason and authority for her discharge is obliterated on her                DD Form 214.

The maximum punishment authorized by the Manual for Courts-Martial for making a false statement under lawful oath is a dishonorable discharge, confinement for 3 years, and forfeiture of all pay and allowances. 

Army Regulation 601-280 outlines uniform procedures for immediate reenlistment or extension of expiration of term of service (ETS) for active Army soldiers and states in pertinent part that soldiers otherwise qualified, may reenlist or extend their current enlistment provided that action does not cause the soldier to exceed the retention control point by more than 29 days.  The retention control point for a sergeant E-5 is 15 years, for a staff sergeant, 20 years.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  The applicant was found guilty of making a false statement under lawful oath and reduced to the rank of Sergeant E-5.  The trial by court-martial was warranted by the gravity of the offenses charged.  Her conviction was effected in accordance with applicable law and regulations. 

2.  The applicant’s reduction to Sergeant caused her to exceed her RCP.  She could not reenlist and she was therefore discharged from the Army.

3.  The Board is cognizant of the letters supporting the applicant and of the NCO evaluation reports submitted with her application.  Nonetheless, those are not sufficiently mitigating to warrant the relief requested. 

4.  The applicant has submitted neither probative evidence nor a convincing argument in support of her request.   

5.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy that requirement.

6.  In view of the foregoing, there is no basis for granting the applicant’s request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

___fne___  ___tsk___  ___wdb_  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2000040118	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20001102	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  7	110.03	
2.	133.00	
3.	105.00	
4.		
5.		
6.